The journey towards opt-in legislation

12 November 04, by

Even though, according to science, our planet has a good 5bn years to run, it seems we are obsessed with the thought that it can't last, Alex Walsh, head of mailing agents and trade associations at Royal Mail.

Archaeologists have even found some Assyrian tablets from 2,800BC that predict the end of the world within a few years. Isaac Newton, one of our greatest scientists, devoted 40 years of his life to trying to calculate the end of the world. He arrived at a date of 2057, so we'll have to wait to see if he was right. And predictions about the end of the world continue to this day. But we tolerate them because we know that nothing lasts forever.

Even the planet itself will one day stop spinning on its familiar axis and life as we know it will end.

The only question is "when?".

But the direct marketing industry seems to be an exception. Either it hasn't noticed that the world is changing or it has preferred to stick its head in the sand like an ostrich and pretend that it isn't.

You only have to look at what has happened with UK legislation to see a very clear and obvious trend. First we had the Data Protection Act, which was a direct result of a European data protection directive. This directive set out basic data protection principles but was not prescriptive about how the member states should interpret "consent". This allowed the UK -- unlike most EU countries -- to adopt the principle of opt-out, or implied consent.

The next piece of UK data protection legislation, a few years later, was the Telecommunications (Data Protection and Privacy) Regulations. Here, for the first time, we saw compulsory use of a Preference Service (TPS) and opt-in, or specific consent, for some media such as fax.

And then last year we had the Privacy in Electronic Communications Regulations where the principle is opt-in except in certain special circumstances. This piece of data protection legislation (like the others before it) is a direct result of an EU directive but the difference this time was that what constituted consent was very tightly defined in the directive and didn't allow the member states to interpret in any other way than opt-in.

So we can see a definite trend towards more restrictive legislation and less flexibility for the UK government -- even if it wanted to -- to interpret consent as anything other than opt-in.

And the pressure for opt-in across all direct marketing media isn't just coming from Europe. Some of it is coming from Westminster as well. There are concerns about the amount of waste going to landfill and the industry's apparent lack of interest in the environmental impact of direct marketing (in spite of the DMA's voluntary recycling targets agreed with government). This has led to many politicians, from all political parties, suggesting that the only solution is to stop waste "at source" by giving consumers the right to opt in.

Which is why I believe that opt-in legislation for all direct marketing is inevitable, and that the only question is "when?".

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